ENDA reintroduced in Congress - Sponsors hope for vote this year on long-delayed bill

by Mike Andrew -
SGN Staff Writer

ENDA, the Employment Non-Discrimination Act, was reintroduced in Congress on April 25. The bill would add protections for LGBT employees to federal civil rights legislation.

While some states, including Washington, prohibit discrimination on the basis of sexual orientation and gender identity, most do not. Some states only protect sexual orientation, or only protect state employees, and 19 states have no protections whatsoever.

Meanwhile, research done by the Williams Institute at UCLA Law School 'consistently shows that LGBT people continue to face high rates of discrimination in the workplace and that state and federal protections could consequently have a significant and positive impact for LGBT workers without overly burdening employers.'

The new bill was introduced by Rep. Jared Polis (D-CO), taking the place of retired Congressman Barney Frank as the measure's prime sponsor. The Senate version will be introduced by Sen. Jeff Merkley (D-OR).

In addition to Merkley, ENDA will have four other Senate sponsors: openly Lesbian Sen. Tammy Baldwin (D-WI), HELP Committee chair Tom Harkin (D-IA), and two Republicans, Mark Kirk of Illinois and Susan Collins of Maine.

TRANS-RELATED CHANGES
The new bill is similar to the one considered by the two previous Congresses, but there have been a few changes. One of the key differences relates to the rights of Transgender workers in so-called 'shared facilities,' one of the most contentious issues in the bill's previous incarnation.

As a concession to Transphobia, the previous version of ENDA allowed an employer to deny Transgender employees access to dressing facilities in which they might be seen unclothed, as long as the company provided access to adequate alternative facilities consistent with the employee's gender identity.

Merkley told the Washington Blade that the new ENDA does not address this issue one way or the other.

'We're going to adopt the model that has been the dominant state model, which is simply not to have discussion on facilities in any of the sections of the bill, which is what the states have done, and it's worked very well,' Merkley said.

STRICT LIMITS REMAIN
Merkley also told the Blade that two important provisions that were being reconsidered would remain in the new ENDA: the bill's robust religious exemption, which would allow faith-based employers to refuse employment to LGBT people, and the exclusion of 'disparate impact' as a cause for complaint.

In U.S. employment law, the doctrine of 'disparate impact' means that a company's employment practices may be considered discriminatory - and therefore illegal - if they have a disproportionate 'adverse impact' on members of a minority group.

Disparate impact is different form 'disparate treatment' because disparate impact need not be intentional, whereas disparate treatment is an intentional decision by the employer to treat people differently based on their sexual orientation, gender identity, or any other protected characteristics.

By excluding disparate impact as a cause of action and limiting complaints to disparate treatment, the measure creates a higher bar for legal recourse, because it is more difficult to prove that an employer meant to discriminate against LGBT employees than to show, for example, that LGBT employees earn less than their straight colleagues doing similar work.

OPTIMISTIC FOR VOTE
Merkley told the Blade that he is optimistic about getting a vote on ENDA in the Senate, in spite of the possibility that conservative Republicans may try to filibuster it.

'I think it's time for every senator to have to take a position on this,' Merkley said.

'We have senators who have been silent on where they stand. We have other senators who may have been recognizing they have been hesitant before, but really there's a hugely compelling principle at stake here: that of equal opportunity to be a full participant in our economy. It's only right and just that people not be discriminated against in employment.'

Merkley reported that Sen. Harkin, whose committee will have jurisdiction over the bill, had promised him a vote on the legislation before the end of the year.

Senators Patty Murray and Maria Cantwell of Washington were co-sponsors of the previous ENDA bill and are expected to sign on to the new version.

On the House side, however, ENDA will be at the mercy of Republican Speaker John Boehner, who is not expected to schedule an up-or-down vote on the measure.

Seattle's Democratic Congressmen, Jim McDermott and Adam Smith, are expected to support the new version of ENDA. Eastside Republican Dave Reichert voted for the version of ENDA that passed the House in 2006, but that one excluded Trans workers from legal protections. Reichert has not revealed whether he will support a Trans-inclusive ENDA.

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